Mr. X and The Broadcasting Authority of Ireland

Whether the BIA was justified in refusing access to the interview notes and written submissions made by or on behalf of RTÉ and the individual programme makers in relation to its investigation into the "Prime Time Investigates - Mission to Prey" programme

Conducted by the Information Commissioner in accordance with section 34(2) of the FOI Act

Background

In a request dated 8 May 2012, and received on 14 May 2012, the applicant sought access to five categories of records relating to the BAI's investigation into the RTÉ "Prime Time Investigates - Mission to Prey" programme, including the transcripts of all interviews carried out during the BAI's investigation. The programme was broadcast on 23 May 2011 and resulted in the defamation of an Irish priest who had previously served as a missionary in Kenya. The BAI investigation commenced in November 2011, and the BAI Statement of Findings and the Report of the Investigating Officer were published in full on 4 May 2012.

In its original and internal review decisions, the BAI granted the applicant's request in part, but refused access to a large number of records under various provisions of the FOI Act. By letter dated 29 September 2012, and received on 2 October 2012, the applicant applied to this Office for a review of the BAI's decision on internal review. The applicant maintained, as he did in his internal review application, that all documents relevant to his request "should be released in the public interest".

Following my acceptance of the application for review, my Office requested the BAI to forward a numbered copy of the relevant records together with a schedule for the purposes of my review. A binder of records and a schedule were forwarded in due course, but copies of records numbered 2.57, 2.58, 2.59 2.95, 2.96, and 2.97 were not included. The BAI described the specified records as containing "journalistic source material in the context of extremely sensitive and private subject matter". The BAI referred to the judgment of the Supreme Court in Mahon Tribunal v. Keena &amp; Anor [2009] IESC 64 in support of its claim that the law accords special protection to such journalistic source material. The BAI offered to make the specified records available at its premises for examination by the staff of my Office, but asked that its "special security arrangements" for the material be maintained if at all possible to avoid any risk of the "journalistic privilege" in the material being regarded as lost or waived. The BAI also made a submission in support of its decision. Having been notified of the review by the BAI, RTÉ also made a submission as an affected third party.

Regrettably, a long delay then arose in making progress with the review due to personnel changes in this Office and other exigencies. The case was ultimately assigned to Ms. Melanie Campbell, Investigator. Upon assignment, Ms. Campbell contacted the applicant by telephone and explained that the BAI and RTÉ had made what appeared to her to be strong claims for exemption, especially under sections 21 (functions of public bodies), 22(1)(a) (legal professional privilege), 26(1)(b) (duty of confidence), and 28 (personal information) of the FOI Act. She also referred to the special security arrangements for the specified records described as containing journalistic source material. The applicant emphasised the public interest in addressing the questions that remain, in his view, unanswered regarding the programme, particularly in light of the large amount of money that RTÉ is believed to have paid out in settlement of the defamation proceedings brought by the priest concerned. He agreed that journalistic source material is sensitive and indicated that, if the material concerned would indeed identify journalistic sources, he would be willing to exclude it from the scope of his request. However, he stated that he was particularly interested in the transcripts of the interviews with the journalists involved.

Following her examination of the binder of records provided, and having regard to relevant Irish and UK case law on "journalistic privilege", the serious concerns which arose over a "leak" of information during the BAI investigation, and the applicant's apparent willingness at the time to exclude at least some of the source material from the scope of his request, Ms. Campbell agreed to the BAI's request to examine the specified records on-site at its premises. Subsequently, Ms. Campbell contacted the applicant again by telephone and email to explain that the claim of "journalistic privilege" was wider in scope than she had initially expected and covers all of the interview notes or transcripts requested. In the circumstances, she accepted that, when the applicant agreed to exclude the "journalistic source material", he did not mean to exclude all source material. The applicant, in turn, agreed that the scope of the review could be confined to the interview notes and the written submissions made by and on behalf of RTÉ and the individual programme makers.

However, Ms. Campbell also explained that, based on her examination of the records, she accepted that both the on-site records and the written submissions that are included in the binder of records contain highly sensitive information relating to both the identity of the sources and the undisclosed content of what the sources said. Ms. Campbell further explained that the records contain very personal information about certain third party individuals. She advised the applicant of her view that section 21(1)(a) applies to the records concerned and that, having regard to the full publication of the Investigation Report, she did not accept that the public interest to be served by the release of the records would outweigh the significant harm that would arise from disclosure. In addition, she noted that sections 26(1)(b) and 28 were of relevance, but that she did not consider that it would be necessary to address these provisions.

The applicant did not dispute Ms. Campbell's view of the matter beyond indicating that more weight should be given to "the public interest in revealing how this [costly] mistake" was made. He stated that he wished for the matter to proceed to decision. Accordingly, having completed my review in accordance with section 34(2) of the FOI Act, I have decided to conclude the matter by way of a formal, binding decision. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

As stated above, the scope of this review is now confined to the interview notes and the written submissions made by or on behalf of RTÉ and the individual programme makers. In an email to the applicant dated 10 October 2014, Ms. Campbell identified the relevant records as those numbered 2.57, 2.58, 2.59, 2.95, 2.96, 2.97, as well as 2.33, 2.54, 2.80, 2.83, 2.85, 2.86, and 2.87 on the schedule of records, a copy of which was provided to the applicant by the BAI on 2 August 2012. Accordingly, the issue before me is whether the BAI's decision to refuse access to the interview notes and written submissions was justified.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the BAI to show to my satisfaction that its decision to refuse to grant the request was justified.

I should also explain my approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

I agree with Ms. Campbell that section 21(1)(a) is the most relevant exemption to consider in the circumstances of this case. Section 21(1)(a) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof. In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To establish the reasonableness of the decision to my satisfaction, it is essential that the decision maker explain how and why he or she believes release of these particular records will give rise to the harm envisaged. Section 21(1) is subject to a public interest test under section 21(2).

In its submission, the BAI explains that its investigation was carried out under section 53 of the Broadcasting Act 2009 to determine whether RTÉ had breached its obligations under sections 39(1)(b) and (e) of the 2009 Act. The BAI notes that the Investigating Officer was required to ascertain the full circumstances surrounding any such breach and that the subject matter of the investigation necessarily concerned the programme-related functions of RTÉ which are expressly excluded from the application of the FOI Act under the Freedom of Information Act, 1997 (Prescribed Bodies) (No.2) Regulations, 2000), S.I. No. 115 of 2000 (e.g., "the gathering of information, data, on/off record quotes and views/identification of the potential or actual sources of information and the editorial decision-making processes"). The BAI describes its own decision-making processes and powers under the 2009 Act as "quasi-judicial" in nature and states:
"There is a well established legal principle that the deliberations and the discussions which form part of the decision-making processes of quasi-judicial bodies should generally remain confidential, primarily because of the inhibiting effect it is considered any disclosure of such internal processes would have upon the future deliberations of the bodies concerned and upon the effectiveness of their decision-making processes."

The BAI claims that disclosure of the requested records would be likely to cause significant prejudice to its future investigations, because the journalists and other employees of RTÉ cooperated and assisted with the investigation, including revealing source material, upon the basis that such information would remain confidential. It refers again to the special protection given to journalistic source material under the law, including the European Convention on Human Rights, and argues that it is reasonable in the circumstances to expect that disclosure of such material by the BAI would inhibit the cooperation of journalists in future and thus prejudice the effectiveness of future investigations and inquiries. It states:
"The statutory investigations of the BAI depend upon the cooperation of journalists and broadcasters and the effectiveness of its investigations under section 53 of the 2009 Act will be seriously undermined by any decision to require the disclosure of material provided in confidence to the BAI for the purposes of its statutory functions."

The BAI acknowledges that broadcasters are obliged to cooperate with section 53 investigations and to provide such information as an Investigating Officer considers necessary, but it argues that these obligations would not be interpreted as requiring the disclosure of journalistic sources in the absence of some overwhelming public interest. It thus contends that its investigations are very dependent on the voluntary cooperation of journalists, editors, and other broadcasting staff. The BAI also notes that the statutory duty to cooperate with section 53 investigations applies to "the broadcaster" and not necessarily individual employees. In any event, the BAI explains:
"[T]he duty of cooperation under section 53(4) of the 2009 Act is not an adequate substitute for the creation of an environment in which relevant persons are prepared and feel able to provide full and complete disclosure of events which they may have witnessed or have knowledge of. Cooperation does not necessarily require the volunteering of information which was not previously known. Accordingly, effective investigation procedures are dependent upon assurances of confidentiality which participants commonly request, particularly in relation to source material."

The submission made by RTÉ supports the position taken by the BAI with respect to the records at issue. RTÉ contends that the Regulations excluding information relating its programme-related functions should be deemed to apply in this case notwithstanding the fact that the records concerned are held by the BAI as a result of its section 53 investigation. RTÉ considers that a failure to apply the Regulations "would circumvent the clear intention of the legislature". RTÉ also considers that its submissions to the BAI, including record 2.33, and the interview notes are subject to journalistic privilege and therefore should not be released as a matter of common law. Moreover, referring to the defamation proceedings that resulted from the broadcast, RTÉ is strongly of the view that the release of the records at issue would, in essence, result in a wrongful violation of the privacy and other Constitutional rights of the individuals who featured in the programme. RTÉ also suggests that the records contain personal information relating to the programme makers.

RTÉ emphasises that the information concerned was given to the BAI for a specified, limited purpose, namely, in order for the BAI to perform its regulatory role. According to RTÉ, its staff fully cooperated with the BAI on a voluntary or willing basis, but on the understanding that the information provided would remain confidential. It refers to correspondence which it regards as effectively providing assurances of confidentiality with respect to the information provided. RTÉ states that the release of the information and records on which the BAI's investigation was based would undermine the integrity of the investigative process provided for in the Broadcasting Act 2009 and affect the progress and efficacy of similar investigations in future. RTÉ considers that the public interest in the BAI being able to investigate effectively complaints and allegations made in respect of broadcasters should outweigh any public interest in disclosing the records, particularly where the findings of the BAI's investigation have been published.

For his part, the applicant does not dispute that journalistic privilege has been recognised by the courts in Ireland, the UK, and Europe. Nevertheless, he contends that there is a strong public interest in further openness regarding how such a costly broadcasting error occurred.

I accept that broadcasting investigations generally require confidentiality in order to be effective. Such investigations, by their nature, would necessarily involve the disclosure to the BAI of journalistic material that is likely to be regarded by the broadcaster and journalists concerned as inherently sensitive and confidential. As noted, it is not in dispute in this case that journalistic source material is entitled to special protection under Irish and European law. In Cornec v. Morris &amp; Ors [2012] IEHC 376, Hogan J found that the protection extended to the undisclosed content of what the source has said, even where the source has been identified (which is not, to my knowledge, the case here). Hogan J observed: "[T]he public interest in protecting the journalist from compelled disclosure is very high, since the exploration of the contents of any discussions with the source also has the ability significantly to hamper the exercise of freedom by the journalist in question."

Moreover, as both the BAI and RTÉ have highlighted in their submissions, the Regulations prescribing RTÉ as a public body under the FOI Act expressly exclude its programme-related functions. While I do not agree that the Regulations apply to records held by the BAI, I accept nonetheless that the Regulations reflect a recognition by the Oireachtas that RTÉ's journalistic material should be protected from disclosure under FOI in normal circumstances. A similar protection exists in the UK, where the protection was found by the Supreme Court in Sugar v. BBC &amp; Anor [2012] UKSC 4 to apply to any information held by the BBC for the purposes of journalism even if it is held predominantly for non-journalistic purposes. Like the Irish case law on journalistic privilege, the reasoning of the UK Supreme Court refers to the strong public interest in protecting journalistic material so that freedom of expression will not be inhibited. I also note that, in the UK, information relating to a particular business which has been obtained for the purposes of a broadcasting investigation is subject to a statutory prohibition on disclosure. (For an interesting case discussing the prohibition in relation to a request made to Ofcom for records relating to a BBC Radio 4 programme, see Decision Notice FS50328208 re Ofcom, dated 19 April 2011, available at http://ico.org.uk/~/media/documents/decisionnotices/2011/fs_50328208.ashx).

In this case, the correspondence and minutes of BIA meetings on file confirm that the investigation, including the related inquiries and processes that proceeded the completion and publication of the Report, was carried out a private and confidential basis. The BAI did not give an absolute assurance of confidentiality to RTÉ or the programme makers, but it undertook to "do everything to protect the confidentiality" of the source and other confidential or private material provided subject to any publication considered necessary in the discharge of its statutory functions and obligations. Moreover, it was specified by the Investigating Officer to all concerned that the interviews would be "held in private".

Accordingly, RTÉ and the programme makers provided detailed and candid information about sensitive matters underlying the decision to broadcast the "Mission to Prey" programme. While the BAI could have invoked its enforcement powers under the 2009 Act to compel RTÉ to provide information considered relevant to the investigation, I accept that the voluntary and willing cooperation of RTÉ and the programme makers greatly facilitated the investigative process. It took less than six months to conduct the investigation and to finalise and publish the Report, and RTÉ's full cooperation with the investigation is highlighted both in the Report itself and the statement of findings that was issued pursuant to section 55(2) of the Broadcasting Act.

I also accept that disclosure of the records at issue under FOI would be regarded as a breach of trust in the circumstances and would rise to a perception that similar breaches could occur in future. This, in turn, has the potential of inhibiting the co-operation that the BAI receives from broadcasters, which could reasonably be expected to prejudice the effectiveness of the BAI's investigations and inquiries under the 2009 Act and the procedures and methods employed for the conduct thereof. I am satisfied that, subject to the public interest test, section 21(1)(a) applies.

As stated above, the Regulations prescribing RTÉ as a public body reflect a recognition by the Oireachtas that RTÉ's journalistic material should be protected from disclosure under FOI in normal circumstances. However, the circumstances of this case are far from "normal", which is why the records at issue are held by the BAI as a result of its section 53 investigation. As the applicant points out, the broadcast of the "Mission to Prey" programme was a costly "mistake". The allegations made in the broadcast proved to be wrong and thus the source material was at best mistaken.

I note, nevertheless, that journalistic privilege is regarded as necessary in the public interest to protect freedom of expression by ensuring, in the words of Hogan J, "the free flow of information which is essential in a free society". The case law suggests that disclosure of source material can only be justified in the event of an "'overriding requirement in the public interest'" such as the "overwhelming public interest in the detection and prosecution of crime" (quoting Fennelly J. in Mahon Tribunal v. Keena, referenced above, and O'Neill J in Walsh v. The News Group Newspaper Ltd [2012] IEHC 353). It is also important to recall that the subject matter of the programme and thus the records at issue is of a deeply personal nature in relation to the individuals featured.

Moreover, the publication of the Report of the Investigator Officer in full sheds a great deal of light on the mistakes that were made in relation to the making and broadcasting of the programme. The Report itself is detailed and thorough and emphasises the "group think" mentality that underlay the unfounded assumptions that were made by the production team. As Ms. Campbell explained to the applicant, further openness with respect to the making and broadcasting of the programme could not be achieved without violating the journalistic privilege recognised by the courts, breaching trust, prejudicing the procedures and methods employed by the BAI in carrying out investigations and related inquires under the Broadcasting Act, and further invading the privacy of certain third parties in a manner that would be entirely unwarranted. I also note that, while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily this mean that there is a true public interest in disclosing the information. In short, like Ms. Campbell, I do not believe that the public interest to be served by granting the applicant's request would outweigh the significant harm that would arise from disclosure of the records concerned. I conclude that the BAI's decision was justified in this case.

As I have found that section 21(1)(a) applies, it is not necessary for me to address the additional claims for exemption made by the BAI and RTÉ in relation to the records concerned.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the BAI in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.